Humphrey for and on Behalf of N.L.R.B. v. International Longshoremen's Ass'n AFL-CIO, AFL-CIO

• Citation: 548 F.2d 494
• Decision Date: 20 January 1977
• Docket Number: AFL-CIO,No. 75-2281,75-2281
• Parties: 94 L.R.R.M. (BNA) 2374, 80 Lab.Cas. P 11,905 William C. HUMPHREY, Regional Director of Region 5 of the National Labor Relations Board, for and on Behalf of the NATIONAL LABOR RELATIONS BOARD, Appellant, v. INTERNATIONAL LONGSHOREMEN'S ASSOCIATIONet al., Appellees.
• Court: U.S. Court of Appeals — Fourth Circuit

Page 494

548 F.2d 494

94 L.R.R.M. (BNA) 2374, 80 Lab.Cas. P 11,905

William C. HUMPHREY, Regional Director of Region 5 of the National Labor Relations Board, for and on Behalf of the NATIONAL LABOR RELATIONS BOARD, Appellant, v. INTERNATIONAL LONGSHOREMEN'S ASSOCIATION AFL-CIO et al., Appellees.

No. 75-2281.

United States Court of Appeals, Fourth Circuit.

Argued June 9, 1976.

Decided Jan. 20, 1977.

Milford R. Limesand, Deputy Asst. Atty., Counsel, Washington, D.C., N.L.R.B. (John S. Irving, Jr., Gen. Counsel, Gerald Brissman, Associate Gen. Counsel, Joseph E. Mayer, Asst. Gen. Counsel, Miriam B. Hartley, Atty., N.L.R.B., Washington, D.C., on brief), for appellant.

Braden Vandeventer, Norfolk, Va., C. P. Lambos, Thomas W. Gleason, New York, City (Sidney H. Kelsey, Kelsey & Kelsey, Norfolk, Va., Herzl S. Eisenstadt, Irwin Herschlag, Richard H. Kapp, New York City, Vandeventer, Black, Meredith & Martin, Norfolk, Va., Lorenz, Finn, Giardino & Lambos, Jacob Silverman and Donato Caruso, New York City, on brief), for appellees.

Before CRAVEN and RUSSELL, Circuit Judges, and MARKEY, Chief Judge, United States Court of Customs and Patent Appeals. ^*

DONALD RUSSELL, Circuit Judge.

This is an appeal from on order denying a temporary injunction sought by the Regional Director of the National Labor Relations Board under Section 10(l ) of the National Labor Relations Act, 29 U.S.C. § 160(l ), ¹ pending resolution of charges filed with the Board by motor common carriers ² alleging that the International Longshoremen's Association, AFL-CIO and its member local labor organizations in the Port of Hampton Roads ³ (ILA) and the Hampton Roads Shipping Association (HRSA), an association of steamship carriers employing ILA labor, had engaged and were engaging in unfair labor practices in violation of Section 8(e) of the Act, 29 U.S.C. § 158(e) (prohibiting "hot cargo" agreements) ⁴ and that the ILA had engaged in unfair practices in violation of § 8(b)(4)(ii)(B) of the Act, 29 U.S.C. § 158(b)(4)(ii)(B) (prohibiting "secondary boycotts"). ⁵ For the reasons set forth below, we vacate the order entered by the district court and remand for entry of an appropriate injunction. ⁶

The origins of this controversy lie in the drastic reduction in the amount of work available for longshoremen brought about by increasing use of containerization the shipping of cargo in large enclosed boxes which can be loaded directly onto a ship. Because of its substantial impact on the employment of ILA labor, containerization, which first appeared in the Hampton Roads area in 1965, has been the subject of rules set forth in collective bargaining agreements between the ILA and representatives of the steamship carriers for the periods 1968-1971 (the 1968 contract), 1971-1974 (the 1971 contract) and 1974-1977 (the 1974 contract). ⁷ The rules set forth in the 1974 contract provide, inter alia, that if "full shipper's loads" ⁸ are "stripped" or "stuffed" ⁹ within a fifty-mile radius of the port's center other than by employees of the consignee (in the case of import goods) or the shipper (in the case of export goods), such work must be performed by ILA longshoremen or the offending carrier must pay $1,000 in "liquidated damages" per container which should have been loaded or discharged to the ILA joint Container Royalty Fund. ¹⁰ Following the adoption of these provisions, United States Lines, Inc., a member of HRSA, cancelled the Equipment Interchange Agreements ¹¹ between it and several motor carriers who refused to reimburse it for liquidated damages which it had to pay when they "stripped" full shipper's loads within the fifty-mile zone. Such cancellations effectively precluded the affected motor carriers from handling future United States Lines container cargo. The General Counsel contends, therefore that the rules and the conduct of the appellees in enforcing them create, in effect, an unlawful boycott of motor carriers who "strip" full shipper's loads within fifty miles of the port's center. ¹² The district court, however, concluded that the challenged provisions are valid work preservation measures under the doctrine of Woodwork Manufacturers v. NLRB (1967) 386 U.S. 612, 87 S.Ct. 1250, 18 L.Ed.2d 357, reh. denied 387 U.S. 926, 87 S.Ct. 2026, 18 L.Ed.2d 985 and denied injunctive relief. ¹³

Our analysis begins with the rule of substantive law which will govern the Board's ultimate resolution of this controversy: regardless of the impact on other persons, union action and collective bargaining agreements which are intended to preserve work traditionally done by members of the bargaining unit do not contravene Sections 8(b)(4)(ii)(B) and 8(e) of the Act, Woodwork Manufacturers v. NLRB, supra; but labor contracts which are designed to acquire for members of the union work which they have not previously performed are unlawful if they expressly or impliedly require the employer to cease doing business with another person, see, e.g., Local Union No. 98 of Sheet Metal Wkrs. In. Ass'n v. N.L.R.B. (1970) 140 U.S.App.D.C. 83, 433 F.2d 1189, 1195 and N.L.R.B. v. Local U. No. 141 of Sheet Metal Wkrs.' Int. Ass'n. (6th Cir. 1970) 425 F.2d 730. From this statement of the rule, it is obvious that the primary question to be answered by the Board is whether the challenged rules are "work preservation" provisions of "work acquisition" measures. ¹⁴

It is, however, neither necessary nor proper to resolve that issue finally at this preliminary stage. When considering a petition for temporary relief under Section 10(l ), the function of the district court is not to decide the merits of the case but to determine whether the Regional Director has reasonable cause to believe that the respondents are violating the Act. Sachs v. Local U. No. 48, United Ass'n. of J. & A. of Plumb., Etc. (4th Cir. 1972) 454 F.2d 879, 882. Of course, this does not mean, as appellant argues and some courts have apparently held, ¹⁵ that even if the district court is convinced that the General Counsel's legal position is wrong, it must nevertheless grant the requested injunction so long as that position cannot be characterized as frivolous. See Judge Friendly's well-reasoned opinion in Danielson v. Joint Bd. of Coat, Suit & Allied Gar. Wkrs. U. (2d Cir. 1974) 494 F.2d 1230, 1239-1245, holding that adoption of the "insubstantial and frivolous" standard urged by some courts would be an abandonment of traditional equitable discretion unwarranted by either the language or the legislative history of Section 10(l ). However, while a temporary injunction should not issue unless there is some reasonable possibility that the Board will ultimately enter an enforceable order, the General Counsel's resolution of disputed issues of law and fact should be accorded considerable deference in determining whether such possibility exists. Danielson v. Joint Bd. of Coat, Suit & Allied Gar. Wkrs. U., supra, 494 F.2d at 1245, and Danielson v. International Or. of Mast., M. & P., AFL-CIO, supra, 521 F.2d at 751. Where, as here, the Board's expertise in labor matters may be particularly useful because the case presents a difficult question as to the proper application of a legal standard to a complex industrial situation, the district court, acting without the benefit of full consideration of the issue by the Board, should be especially reluctant to conclude that the General Counsel's contentions are without merit.

Bearing these standards in mind, we conclude that the district court erred in finding that the Regional Director lacked reasonable cause to believe that the rules with respect to the "stripping" and "stuffing" of full shipper's loads within the fifty-mile zone are unlawful "work acquisition" measures. The reasons for this conclusion are apparent from a review of the role of longshoremen on the docks of the Hampton Roads area.

As established by the record, the traditional function of longshoremen is to load and unload the solid cargo of ocean-going ships at piers in the port area. Prior to the mid-1960's, most of this freight was "break bulk cargo" loose boxes and bundles handled piece by piece. When loading ships, the longshoremen would unload such cargo from the trucks which brought it to the dock, prepare it for loading by stacking it on pallets and hoist it aboard ship. During off-loading, the longshoremen would remove the cargo-bearing pallets from the ship, sort the goods according to consignee and type and transport them to the end of the pier for loading onto trucks. Insofar as the record shows, the work of the longshoremen with respect to import cargo ended at the tailgate of the truck.

Containerized cargo first appeared in the Hampton Roads port area in 1965. ¹⁶ During the period 1965-1967, when there was no collective bargaining agreement covering containerization, ILA longshoremen "stripped" containers holding goods destined for more than one consignee (consolidated container loads). ¹⁷ During the same period, however, the general practice with regard to full shipper's loads was for longshoremen merely to remove the container from the ship and place it on the pier where it was picked up by a motor carrier. Occasionally, longshoremen would "strip" such containers at the stevedore's request.

Since 1968, the collective bargaining agreements between the ILA and the steamship carriers have provided that certain consolidated container loads must be "stripped" and "stuffed" by ILA longshoremen or the offending shipping line must pay liquidated damages to the joint Container Royalty Fund. ¹⁸ Until 1974, however, there was no express provision giving ILA labor the right to "strip" or "stuff" any full shipper's loads. ¹⁹

From the inception of containerization in the Port of Hampton Roads, motor carriers picking up unstripped full shipper's loads at the docks have often taken them to their port area terminals, stripped the cargo from the container and loaded it into their own trailers. A trucking...